Gifford v. Siskiyou County Sheriff

          FINDINGS AND RECOMMENDATION

          CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, proceeding in propria persona and in forma pauperis, brings this civil action. Pending before the court are defendants' motions to dismiss (Docs. 14, 50). The hearing on the first motion to dismiss was taken off calendar and submitted on the records and briefs pursuant to Local Rule 230(c), as no opposition to the motion was filed. A hearing on the second motion to dismiss was held on October 10, 2015, before the undersigned in Redding, California. Deputy Attorney General Alberto Gonzalez appeared telephonically; plaintiff appeared in pro se. Attorney Philip B. Price also appeared in person.

         I. BACKGROUND

         Plaintiff originally filed this action in September 2011. The complaint was dismissed with leave to amend, and an amended complaint was filed January 20, 2012 (Doc. 7). The amended complaint named both California Highway Patrol officers (State defendants) and Siskiyou County Sheriff deputies (County defendants). Service on the individual officers was authorized and completed. The County defendants filed a motion to dismiss on August 24, 2012. Prior to the court ruling on the motion to dismiss, the State defendants (by special appearance) and plaintiff entered into a stipulation to stay the proceedings (joined by the County defendants), which was granted, based on an underlying state court proceeding related to the claims raised in this case. In April 2015, the stay was lifted as the underlying state proceedings concluded. A status conference was held on May 27, 2015. The County defendants were provided an opportunity to file a renewed motion to dismiss, which they chose not to do, relying instead on the pending motion to dismiss. Plaintiff had previously failed to file a timely opposition to the County defendants' motion; however, he did file a late opposition which the undersigned has read and considered. The State defendants then filed their pending motion to dismiss, to which plaintiff filed a timely opposition, and the matter was heard by the court on October 21, 2015.

         II. MOTIONS TO DISMISS

         The State and County defendants each filed separate motions to dismiss. The underlying issue in the motions to dismiss are essentially the same, and the same analysis is applicable to both. The undersigned will therefore address the motions together.

         The defendants bring their motions to dismiss on the grounds that plaintiff's complaint fails to state a claim upon which relief can be granted, the court lacks jurisdiction over the pendent state law claims, the officers are entitled to qualified immunity, there was no constitutional violation to support plaintiff's claims, plaintiff failed to comply with the California Government Claims Act, and other claims are not well plead. The defendants also argue^[1] the state law claims should be stricken, and in the alternative, for a more definite statement. The later of these arguments are unnecessary based on the discussion below.

         In opposition, plaintiff argues that he intends to prove during trial that the defendants violated his Constitutional rights. As to the qualified immunity, plaintiff argues that he is an approved Compassionate Use Act (CUA) user, an argument that does not address the application of qualified immunity. He also argues that his property was ordered to be returned by the state court, but it has not been returned.

         A. STANDARDS

         In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). "Although a pro se litigant ... may be entitled to great leeway when the court construes his pleadings, those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil v. United States Dept of Navy, 66 F.3d 193, 199 (9th Cir. 1995).

         Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).

         In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

         Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).

         B. ...